Loading...
HomeMy WebLinkAbout2013-042 Receipt of Items from Vehicle Occupant at Some Intersections; Aggressive Begging; YMC Addition 6.75.025 and 6.75.080ORDINANCE NO. 2013 -042 AN ORDINANCE relating to Public Safety; amending Yakima Municipal Code Chapter 6.75; enacting a new section 6.75.025 prohibiting the receipt of items from the occupant of a motor vehicle on a public roadway at high accident intersections, amending section 6.75.070, changing the classification of aggressive begging from an infraction to a misdemeanor and enacting a new section 6.75.080-adding a savings clause to Chapter 6.75. BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. A new section, 6.75.025, of the City of Yakima Municipal Code is hereby adopted to read as follows: 6.75.025 Receipt of items from the occupant of a motor vehicle at certain intersections prohibited. A. The purpose of this section is to promote the City's fundamental interest in public health and safety, by regulating conduct that occurs at high accident intersections and to provide for the free flow of motor vehicle traffic on roadways in the City. The City Council finds that the intersections listed in subsection D are high accident intersections and to receive any item from the occupant of a motor vehicle upon a roadway within these intersections presents a threat to public safety and the free and safe flow of motor vehicle traffic. B. For purposes of this Section the following definitions apply: 1. "Item" means any physical object. 2. "Permitted Parking Area" means an area in which parking a vehicle is authorized. 3. "Receive" means to acquire or collect any item from the occupant of a motor vehicle that is located in the roadway. 4. "Roadway" means that portion of the road designed or ordinarily used for vehicular travel within the City. This definition excludes private roads and private property. This definition also excludes areas where parking is permitted in the City. C. It shall be unlawful to violate any prohibitions set forth below within the areas listed in subsection D. 1. No person shall receive any item from an occupant of any motor vehicle when the vehicle is located in the roadway. 2. This Section shall not apply to the receipt of any item with the occupant of a motor vehicle on private property or in a permitted parking area. 3. This Section shall not apply to any law enforcement officer acting within the scope of his or her official duty. 4. This Section shall not apply to the receipt or exchange of any item with the occupant of a motor vehicle located in the roadway in order to assist the occupant after a motor vehicle accident, with a disabled motor vehicle, or where the occupant is experiencing a medical emergency. D. Conduct described in subsection C. 1. is prohibited within 250 feet of the following high accident intersections: a. S. 1 St Stand Washington Ave b. S. 1St St and Nob Hill Blvd C. S. 40th Ave and W. Nob Hill Blvd d. S. 16th Ave and W. Nob Hill Blvd e. S. 40th Ave and Summitview Ave f. S. 16th Ave and Tieton Dr g. N. 40th Ave and Fruitvale Blvd h. S. 3rd Ave and W. Nob Hill Blvd. i. S. Fair Ave and E. Nob Hill Blvd j. S. 1 st Stand Mead Ave k. S. 18th St and E. Nob Hill Blvd I. N. 16th Ave and W. Lincoln Ave m. S. 40th Ave and Tieton Dr n. S. 1St St and E. Yakima Ave o. N. 16th Ave and Summitview Ave Section 2. Section 6.75.070 of the City of Yakima Municipal Code is hereby amended to read as follows: 6.75.070 Penalty for Violation. A. With the exception of YMC 6.75.020A2 and 6.75.025, any violation of this chapter is an infraction. The maximum civil infraction penalty for a first violation of this section within a one -year period shall be ninety -five dollars; for a second offense within a one -year period the penalty shall be one hundred fifty dollars; and for a third or subsequent violation within a one -year period, the penalty shall be two hundred fifty dollars. B. A violation of 6.75.020A2 or 6.75.025 is a misdemeanor. Section 3. A new section, 6.75.080, of the City of Yakima Municipal Code is hereby adopted to read as follows: 6.75.080 Savings Clause If any provision of this Chapter is declared invalid or unconstitutional by any Court of competent jurisdiction, the remaining provisions shall be severable and shall continue in full force and effect. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. 2013. PASSED BY THE CITY COUNCIL, signed and approved this 3rd day of September, H Sy `_ G %G'�l ro�t4 N Micah Cawle , Mayor T: <� City rk Publication Date: Septembe 6,` d� Effective Date: October 6, 2 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No.` For Meeting of: 913/2013 ITEM TITLE: An ordinance relating to Public Safety; amending Yakima Municipal Code Chapter 6.75; enacting a new section 6.75.025 prohibiting the receipt of items from the occupant of a motor vehicle on a public roadway at high accident intersections, amending section 6.75.070, changing the classification of aggressive begging from an infraction to a misdemeanor and enacting a new section 6.75.080 adding a savings clause to Chapter 6.75. SUBMITTED BY: Cynthia Martinez, Senior Assistant City Attorney SUMMARY EXPLANATION: In response to the comments made at the public hearing concerning panhandling in the City of Yakima and the Council's direction, the Legal Department has researched relevant case law surrounding speech - related protections, particularly those associated with panhandling activities. We have also reviewed some more recent approaches that have been taken nationally to address panhandling - related concerns from a non - speech related perspective. Attached is the Legal Department's proposed approach to improve public safety and address the concerns expressed by those attending the recent public hearing. Attached is a proposed Ordinance which accomplishes 3 things: 1. Criminalizes aggressive begging; 2. Prohibits the receipt of items from a vehicle upon the roadway at high accident intersections (top 15 intersections); and 3. Adds a savings clause to Chapter 6.75. The prohibition of receiving items from the occupant of a motor vehicle at certain intersections will accomplish Council's goal of improving public safety and maintaining the free flow of traffic at high accident intersections. The top fifteen high accident intersections were selected to be regulated. A violation of this regulation would be a misdemeanor offense. This Ordinance is designed to regulate conduct (the act of receiving items from a vehicle upon the roadway), not speech. If the proposed Ordinance is adopted, an individual can still stand on the corner of a high accident intersection and hold a political sign or solicit donations and a person would still be able to distribute literature to a vehicle, as long as they are not violating other laws. However, an individual would not be able to receive an item, such as money, unless the driver has pulled out of traffic and parked in a permitted parking spot. The proposed regulation does address a compelling government interest; public safety and the free flow of traffic. It does address some of the issues raised in the latest Ninth Circuit case involving similar free speech issues by not applying city -wide. The proposed Ordinance does strive to be narrowly tailored by allowing speech and leaving other alternative channels for the prohibited conduct. There are arguments to be made against the proposed Ordinance and because this is an area of law that is constantly evolving it is difficult to predict how the Court would rule if the proposed regulation was challenged. This proposed Ordinance was reviewed by the Public Safety Committee on August 23, 2013. The Committee Members liked the balance between regulating the distracting behavior and free speech concerns. The Committee Members unanimously recommended that the proposed Ordinance be forwarded to the full City Council for consideration. Resolution: Other (Specify): Contract: Start Date: Item Budgeted: NA Funding Source /Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: Ordinance: X Contract Term: End Date: Amount: Public Safety City Manager The Public Safety Committee Members recommend that the proposed Ordinance be considered and approved. ATTACHMENTS: Description Upload Date Memo to Public Safety Committee re Panhandling 8/26/2013 . Panhandling Type Cover Memo 0 Panhandling Ordinance - Final eo-- 812612013 Cover Memo CITY OF YAKIMA LEGAL DEPARTMENT 200 South Third Street Yakima, Washuigton %Rn (509)575bQ30 F" (,"P75 6160 MEMORANDUM August 19, 2013 TO: Maureen Adkison, Public Safety Committee Member Dave Ettl, Public Safety Committee Member Mayor Micah Cawley, Public Safety Committee Member FROM: Cynthia I. Martinez, Senior Assistant City Attorney SUBJECT: Proposed Ordinance to Address Issues Related to Panhandling In response to the comments made at the public hearing concerning panhandling in the City of Yakima and the Council's direction, the Legal Department has researched relevant case law surrounding speech - related protections, particularly those associated with panhandling activities. We have also reviewed some more recent approaches that have been taken nationally to address panhandling - related concerns from a non - speech related perspective. What is attached to this memorandum is the Legal Department's proposed approach to improve public safety and address the concerns expressed by those attending the recent public hearing. Attached is a proposed ordinance which accomplishes 3 things: 1. Criminalizes aggressive begging; 2. Prohibits the receipt of items from a vehicle upon the roadway at high accident intersections (top 15 intersections); and 3. Adds a savings clause to Chapter 6.75. The prohibition of receiving items from the occupant of a motor vehicle at certain intersections will accomplish Council's goal of improving public safety and maintaining the free flow of traffic at high accident intersections. This ordinance is designed to regulate conduct (the act of receiving items from a vehicle upon the roadway), not speech. If the proposed ordinance is adopted, an individual can still stand on the corner of a high accident intersection and hold a political sign or solicit donations and a person would still be able to distribute literature to a vehicle, as long as they are not violating other laws. However, an individual would not be able to receive an item, such as money, unless the driver has pulled out of traffic and parked in a permitted parking spot. Memorandum to Public Safety Committee August 19, 2013 Page 2 We are not recommending that we also prohibit distribution of materials to the occupant of a motor vehicle because such a prohibition would capture the distribution of literature, including political literature. The Courts have disfavored such regulation even to a vehicle stopped for a red light. Fortunately, the act of distributing literature to a vehicle in traffic is rare in Yakima; there are much safer locations to distribute literature. It is possible that the Court may find that the ordinance regulates speech. Should that happen, the Court would determine whether the restriction is content -based or content - neutral. A content based restriction is one that "by its terms distinguishes favored speech from disfavored speech on the basis of the ideas or views expressed." Turner Broad Sys., Inc v. FCC, 512 U.S. 622, 643 (1994) The Court permits content - neutral regulations which impose reasonable time, place, and manner of expression if the regulations are "narrowly tailored to serve a significant government interest and leave open ample alternative channels of communications." Id. If the ordinance is applied as written, we believe we have an argument that the regulation is content - neutral. However, there are arguments to be made that the ordinance is not content neutral and or that the restrictions are not reasonable. Content -based restrictions are subject to the most stringent scrutiny. "Content —based regulations are presumptively invalid "' R.A. V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L.Ed.2d 305 (1992) We would bear the burden of showing 1) that the regulation is necessary to serve a compelling state interest, 2) is narrowly drawn to achieve that end, and 3) that the restriction leaves open ample alternative channels for communication of the information. Perry Education Association v. Perry Local Educators Association, 460 U. S. 37, 45, 103 S. CT. 948, 74 L. Ed. 2d 794 (1983) If any less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) A narrowly tailored restriction is one that does not burden substantially more speech than is necessary to further the government's legitimate interests. To support our assertion that receiving items from cars in traffic at these high accident intersections is an additional distraction for the drivers, we will want to establish a record at the Council meeting regarding the busy nature and frequency of accidents at the targeted intersections. Having strong data supporting the need to reduce distractions at those intersections may be helpful. Even with a strong record, this is an area of the law that is constantly evolving, and therefore it is difficult to predict how the Court will rule if the ordinance is challenged. The proposed regulation does address a compelling government interest; public safety and the free flow of traffic. It does address some of the issues raised in the latest Ninth Circuit case involving similar free speech issues, the Comite case, by not applying City- wide. The proposed ordinance does allow the speech and leaves other alternative channels for the prohibited conduct. Again, there are arguments to be made on the Memorandum to Public Safety Committee August 19, 2013 Page 3 other side and it is difficult to predict how the Court would rule if the proposed regulation was challenged. In conclusion, the proposed ordinance does strive to meet constitutional requirements and does provide the City arguments to be made depending on the Court's ruling in each potential challenge. However, although we believe this is the best alternative, the ordinance may put the City at risk. In the event that the City passes an ordinance that is enforced, in other words, people are arrested pursuant to the ordinance, and the ordinance is declared unconstitutional, the City may be subjected to a § 1983 lawsuit. A prevailing plaintiff in a § 1983 lawsuit may receive an award of attorney fees and under certain circumstances, punitive damages. ORDINANCE NO. 2013- AN ORDINANCE relating to Public Safety; amending Yakima Municipal Code Chapter 6.75; enacting a new section 6.75.025 prohibiting the receipt of items from the occupant of a motor vehicle on a public roadway at high accident intersections, amending section 6.75.070, changing the classification of aggressive begging from an infraction to a misdemeanor and enacting a new section 6.75.080 adding a savings clause to Chapter 6.75. BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. A new section, 6.75.025, of the City of Yakima Municipal Code is hereby adopted to read as follows: 6.75.025 Receipt of items from the occupant of a motor vehicle at certain intersections Drohibited. A. The purpose of this section is to promote the City's fundamental interest in public health and safety, by regulating conduct that occurs at high accident intersections and to provide for the free flow of motor vehicle traffic on roadways in the City. The City Council finds that the intersections listed in subsection D are high accident intersections and to receive any item from the occupant of a motor vehicle upon a roadway within these intersections presents a threat to public safety and the free and safe flow of motor vehicle traffic. B. For purposes of this Section the following definitions apply: 1. "Item" means any physical object. 2. "Permitted Parking Area" means an area in which parking a vehicle is authorized. 3. "Receive" means to acquire or collect any item from the occupant of a motor vehicle that is located in the roadway. 4. "Roadway" means that portion of the road designed or ordinarily used for vehicular travel within the City. This definition excludes private roads and private property. This definition also excludes areas where parking is permitted in the City. C. It shall be unlawful to violate any prohibitions set forth below within the areas listed in subsection D. 1. No person shall receive anv item from an occupant of anv motor vehicle when the vehicle is located in the roadway. 2. This Section shall not apply to the receipt of any item with the occupant of a motor vehicle on private property or in a permitted parking area. 3. This Section shall not apply to any law enforcement officer acting within the scope of his or her official duty. 4. This Section shall not apply to the receipt or exchange of any item with the occupant of a motor vehicle located in the roadway in order to assist the occupant after a motor vehicle accident, with a disabled motor vehicle, or where the occupant is experiencing a medical emergency. D. Conduct described in subsection C. 1. is prohibited within 250 feet of the following high accident intersections: a. S. 1St Stand Washington Ave b. S. C. S. 1St St and Nob Hill Blvd 40th Ave and W. Nob Hill Blvd d. S. 16th Ave and W. Nob Hill Blvd e. S. 40th Ave and Summitview Ave f. S. g. N. 16th Ave and Tieton Dr 40th Ave and Fruitvale Blvd h. S.3 d Ave and W. Nob Hill Blvd. i. S. Fair Ave and E. Nob Hill Blvd i. S. 1St St and Mead Ave k. S. 18th St and E. Nob Hill Blvd I. N. 16th Ave and W. Lincoln Ave m. S. 40th Ave and Tieton Dr n. S. 1St St and E. Yakima Ave o. N. 16th Ave and Summitview Ave Section 2. Section 6.75.070 of the City of Yakima Municipal Code is hereby amended to read as follows: 6.75.070 Penalty for Violation. I RIeSS ntheRNOso nntod M 4WR this nhapter, A. With the exception of YMC 6.75.020A2 and 6.75.025, any violation of this chapter is an infraction. The maximum civil infraction penalty for a first violation of this section within a one - year period shall be ninety -five dollars; for a second offense within a one -year period the penalty shall be one hundred fifty dollars; and for a third or subsequent violation within a one -year period, the penalty shall be two hundred fifty dollars. B. A violation of 6.75.020A2 or 6.75.025 is a misdemeanor. Section 3. A new section, 6.75.080, of the City of Yakima Municipal Code is hereby adopted to read as follows: 6.75.080 Savings Clause If any provision of this Chapter is declared invalid or unconstitutional by any Court of competent jurisdiction, the remaining provisions shall be severable and shall continue in full force and effect. Section 4. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 3rd day of September, 2013. ATTEST: City Clerk Publication Date: Effective Date: Micah Cawley, Mayor